REL: 11/25/2015
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
____________________
1141295
____________________
Ex parte Montgomery County Department of Human Resources
____________________
1141310
____________________
Ex parte J.B., a minor, by and through J.T.,
guardian ad litem
PETITIONS FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Montgomery County Department of
Human Resources
v.
N.B.)
(Montgomery Juvenile Court, JU-10-650.04;
Court of Civil Appeals, 2140109 and 2140118)
1141295 and 1141310
MURDOCK, Justice.
The petitions for the writ of certiorari are denied.
In denying the petitions for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion.
Horsley v. Horsley, 291 Ala. 782, 280
So. 2d 155 (1973).
1141295 –- WRIT DENIED.
1141310 –- WRIT DENIED.
Moore, C.J., and Parker, Shaw, and Main, JJ., concur.
Stuart, Bolin, Wise, and Bryan, JJ., dissent.
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1141295 and 1141310
BOLIN, Justice (dissenting).
I agree with the reasons Justice Bryan provides in his
well written writing for not joining this Court in denying
these petitions; I join his dissent.
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1141295 and 1141310
BRYAN, Justice (dissenting).
In November 2011, four years ago, the Montgomery County
Department of Human Resources ("DHR") filed a petition in the
Montgomery Juvenile Court seeking to terminate the parental
rights of N.B. ("the mother") to her then eight-year-old
daughter, J.B. ("the child").
For reasons that have not been
explained to this Court, the juvenile court did not conduct a
hearing on DHR's petition until October 30, 2013 –- nearly two
years after the petition to terminate the mother's parental
rights was filed.
For reasons that, again, have not been
explained to this Court, Judge Anita Kelly did not rule on
DHR's petition, despite repeated requests to do so, until the
Court of Civil Appeals, on October 1, 2014, granted DHR's
petition for a writ of mandamus and ordered Judge Kelly to
rule –- nearly three years after DHR's petition to terminate
the mother's parental rights was filed and almost one full
year after the hearing on the petition to terminate her
parental rights.
Despite
DHR's
presentation
of
clear
and
convincing
evidence indicating both that the mother was unable and
unwilling to discharge her responsibilities to and for the
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1141295 and 1141310
child, see § 12-15-319, Ala. Code 1975, and that there was no
viable alternative to terminating the mother's parental rights
to the child, see B.M. v. State, 895 So. 2d 319, 331 (Ala.
Civ. App. 2004),
Judge Kelly entered an order denying DHR's
petition to terminate the mother's parental rights.
DHR and
the child's guardian ad litem separately appealed, and the
Court of Civil Appeals, by a vote of 3-2, affirmed the
juvenile court's judgment. See Montgomery Cnty. Dep't of Human
Res. v. N.B., [Ms. 2140109, June 12, 2015] ___ So. 3d ___
(Ala. Civ. App. 2015).
The facts of this case are, in many ways, similar to
dozens
of
termination-of-parental-rights
cases
before the Court of Civil Appeals and this Court.
that
come
The mother
has not exercised custody of the child since 2005, when the
child was only two years old.
The child lived with various
relatives until October 2010; at that time, DHR learned that
the child had been sexually abused while in the care of her
relatives,
and
the
child
was
placed
in
foster
care.
Considering the trauma of her childhood, it is not surprising
that the record indicates that the child suffers from post-
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1141295 and 1141310
traumatic
stress
disorder
and
is
under
the
care
of
a
psychiatrist.
The mother has been diagnosed with schizophrenia, bipolar
disorder, and depression.
Despite DHR's offer of services to
treat the mother's mental illnesses, the mother did not
cooperate and did not take the medication prescribed to treat
her mental illnesses.
The mother also continued to use
illegal drugs, even at the time of trial, after DHR offered
the
mother
drug-treatment
investigation
of
all
services.
known
family
Despite
a
thorough
members
who
could
potentially care for the child, DHR was unable to locate a
relative willing to take custody of the child.
The facts of
this case are unusual only in that the mother, who testified
at trial, conceded that she was not willing or able to care
for
the
child
and
admitted
that
there
was
no
hope
for
significant improvement in her circumstances in the future.
To that effect, the mother signed, under oath, a document
consenting to the termination of her parental rights and for
the adoption of the child.
The child has expressed to her
guardian ad litem that she looked forward to being adopted.
Despite the overwhelming evidence in favor of terminating the
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1141295 and 1141310
mother's parental rights, Judge Kelly denied DHR's termination
petition and, in doing so, denied the child the benefits of
stability and permanency that come with adoption.
DHR and the child's guardian ad litem filed with this
Court petitions for a writ of certiorari, seeking review of
the Court of Civil Appeals' decision affirming the juvenile
court's order.
The petitions, which are nearly identical,
wholly fail to comply with the procedural and substantive
requirements of Rule 39, Ala. R. App. P.
best
be
described
as
asserting
The petitions can
various
allegations
of
juvenile- and appellate-court error, which are not cognizable
grounds for certiorari review. See Rule 39(a)(1)(A)-(E), Ala.
R. App. P.
A majority of this Court has voted to deny the
petitions, albeit with the disclaimer that, in denying the
petitions, this Court "does not wish to be understood as
approving all the language, reasons, or statements of law in
the Court of Civil Appeals' opinion." ___ So. 3d at ___.
I wholeheartedly believe that the juvenile court failed
this child by denying DHR's petition to terminate the mother's
parental rights and that the Court of Civil Appeals' decision
in this case conflicts with prior decisions from that court.
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1141295 and 1141310
See, e.g., T.N.S.R. v. N.P.W., 170 So. 3d 684 (Ala. Civ. App.
2014)
(the
presumption
of
correctness
that
is
typically
afforded a trial court's findings of fact based on ore tenus
evidence cannot be sustained where the conclusion reached is
plainly
and
palpably
wrong;
further,
a
trial
court's
application of the law to the undisputed facts is not entitled
to a presumption of correctness); and Rule 39(a)(1)(D).
I
also believe that DHR and its legal division failed this child
by
not
complying
with
the
procedural
and
substantive
requirements of Rule 39. In addition to denying the petitions
with the above-mentioned "disclaimer," the majority of this
Court is ordering the attorneys for DHR to submit to a
tutorial from staff attorneys in the Supreme Court clerk's
office to instruct them in how to comply with Rule 39 when
filing a petition for a writ of certiorari.
first
time
attorneys
this
Court
has
ordered
representing
DHR
in
certiorari filed in this Court.
hard way.
such
petitions
This is not the
a
tutorial
for
a
writ
for
of
Some lessons are learned the
From the perspective of this child, however, that
lesson comes too late.
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1141295 and 1141310
I dissent in this case because I refuse to be another
adult who has totally failed this child.
Bolin and Wise, JJ., concur.
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